Last week I picked on the legal profession alittle, so this week I am going to turn it around and pick on the clients. Clients have some humorous misconceptions. So let’s spend today talking about how clients get it wrong, and how to stop doing that. While some may hail the January decision regarding use of photos on Twitter as new social media law, they are missing the point. Existing laws apply, folks. The judge didn’t change copyright law just for the internet. Why Agence France-Press thought it was ok to lift somebody’s copyrighted work without any legwork on getting permission amazes me.
In The Public Domain
This is the first phrase you should throw out from your vocabulary. Start with the premise that nothing is in the public domain and you will be safe.
Just because I put something on the internet doesn’t mean I have put it in the public domain. Something is in the public domain when no one can own it because everyone owns it. Generally this occurs when the work’s protections have expired. So Victor Hugo’s original work “Les Miserables” in French is in the public domain. That is why you can download it, for free, from Project Gutenberg. However, new expressions, such as recent English translations of Les Miserables are not in the public domain. Their protections have not expired.
A little Copyright 101 here. Once a creative expression is fixed in a tangible medium it is protected by copyright law. That includes all sorts of creative expressions, like music, painting, photography and writing. Which leads to the next misconception.
No Copyright Symbol means Fair Game, right?
Wrong. While it once was true that you needed to put some type of mark on a work to place people on notice that a work was protected that is no longer true. A creative work receives protection from the moment that it is fixed. So the poem on your refrigerator is copyrighted. If someone comes into your home and copies that poem, you have rights that have been trampled on.
It’s on Twitter, Facebook, <INSERT SOCIAL NETWORK>, it is Free
There is also some question as to your rights to reuse content within the service depending on the poster. I don’t particularly agree with this position, but your brand retweeting someone who is a public figure or celebrity is problematic. There are two problems here. The first is their rights of publicity and your trading on their good name to promote your brand. The second is the copyrighted nature of their expressions. The bigger problem lies in the first, though. My personal feeling, though not as a lawyer, is that a celebrity in social is just like a brand in social, just another user. When they engage in social they should be no more and no less than any other user. The fact that someone can retweet my expressions without any regard but they can’t retweet Lady Gaga’s actually rankles me.
They Tweeted it to Me, Therefore That is Permission
Client’s are cute, aren’t they. While I think that an argument can be made to support this position, I think it is a weak one. Giving a license to your content should be more informed than just the inclusion of my brand’s handle in the tweet. Clients get this wrong because they are lazy. Before you use someone’s content, get their permission. Ask. If you are too lazy to ask your user’s permission for their nice words, then you deserve the lawsuit that will come one day.
The form of permission, or license, will differ depending on the use of the content. Simple reuse in a Twitterfall, using Twitter’s API’s, can be handled with some sort of click-through or terms associated with a hashtag. This minimal permission is based on the minimal nature of the use. The larger the use, the more explicit the permission.
Now let’s take that tweet, and reprint it in a full page ad in the New York Times. I would suggest that you have some sort of written agreement for that use. Make it part of a Superbowl ad and the advice is the same. Along that spectrum of use there will be a gradient of permissions. But don’t be lazy. Get the permission.
Do The Right Thing By Your Users and Stop Being Lazy
At its most basic, use of your fan’s content should be guided by two principles: do the right thing and don’t be lazy. Your user put some thought and feeling into what they posted. In a sense it is their baby. Don’t disrespect their baby by indiscriminately showing it off to all your friends. That’s just wrong. If your response to my “get permission” is “that’s too much work” then you are lazy. Stop being lazy. Getting permission from someone who took the time to say something nice that you want to reuse should be an easy step. At least once you get in contact with them.
If none of this resonates with you, let me frame it differently. If your brand had it’s content reused by others for their purposes, how would you feel as a protector of that brand. Your user’s have their own brand. Respect that. Respect the things they do and create. Stop taking the easy way out and stop using legal mumbo-jumbo to get around doing the right thing by your users. Engage them on the reuse of their content and you may actually create a super-fan, too.
THOUGHT FOR THE DAY
Clients are like puppies. They are cute and want to make everyone happy. But they will poop inside if you don’t watch them. Housetrain your clients.